Enhancing & Expanding Knowledge

NOT A YES, MEANS A NO: SPANISH LAWS ROAR FOR CHANGE

Sexual offences against women have often been termed as a “silent epidemic“ [1] mainly due to the propensity of such cases going unreported. It is only in the recent years that women globally have broken the long imposed societal omerta of keeping quiet over the sexual offences committed against them and have openly started confronting their offenders with popular and effective movements like the MeToo Movement (amongst other forms of their expression) being the glaring instance. These movements have not only given voice to the long-suppressed other gender against their offenders but have shook the conscience of the society globally at large in one way or the other. While the global society together strives towards making the world a safer and equal place for women, there happen instances or incidents time and again which makes one question the advancements our societies have made to this end. While at times these incidents relate to the complete neglect or apathy shown by the society towards the critical nature of sexual offences, the other times these incidents show the inefficiency or loopholes in laws of various nations in dealing with sexual offences.

The Manresa Incident and the Judgment of the Court

A recent incident highlighting the lacunae in law dealing with the offence of rape and thereby inviting irk of the people from every stable of the society in Spain was the judgment of a Barcelona Court in a case involving the rape of a 14 year old girl in Barcelona.[2] The Court in its judgment while interpreting the Spanish Laws with respect to the offence of rape or sexual assault (as it is called in Spanish Law) held five men accused of gang-raping a girl to be only guilty of the lesser offence of sexual abuse and not sexual assault. The judgment of the court was rooted in the fact that the victim was unconscious under the effect of alcohol and thus could not either consent to or oppose the sexual advance. [3] Thus, the necessary element of the use of violence or intimidation as necessary under the Spanish laws to constitute the offence the rape was found to be missing on account of the victim’s inability to either consent to or oppose the act.

A Brief Analysis of Spanish Laws with Respect to the Offence of Rape

The Spanish Criminal Code,[4]which is the penal law operational in Spain defines the offence of rape as a situation where the sexual assault consists of vaginal, anal or oral penetration or inserting body parts or objects into either of the former twp orifices.[5] Thus, in order to understand the meanings and contours of this definition, one has to look at the definition of sexual assault in the Spanish Criminal law as the very meaning and definition of rape is contingent on whether an offence can be classified as sexual assault in the first place itself. Sexual assault under the Spanish criminal law is defined as offending the sexual freedom of another person through the use of violence or intimidation. [6] Thus, on an analysis of these provisions of the Spanish Criminal Code it becomes crystal clear that the use of violence or intimidation by the Accused is necessary to constitute the offence of sexual assault and thereby to constitute the offence of rape.

However, on a closer analysis of these provisions of the Spanish Criminal Law it becomes very clear that there is a complete ignorance or disdain towards the importance of consent in Spanish Criminal Laws with respect to the offence of sexual assault. Consent under the Spanish Criminal Law is not the primary fulcrum on which the offence of rape is dependent upon but a mere derivation from the presence or absence of intimidation or violence in the commission of the offence of sexual assault. Thus, in cases such as the Manresa Rape Case, though the modesty of a women was outraged in the absence of her consent, no offence of rape could be made out as per the law since due to inebriated and unconscious status of the victim, the Accused did not have had to make any use of violence or intimidation for the commission of the offence. What the Spanish law ironically requires is a heroic fight back from the victim in cases of sexual assault with consent not being the consideration to constitute the offence of rape.

Laws in Other European Nations with Respect to the Offence of Rape: Consent Based v. Physical Violence Based

The European society at large has often been seen as a beacon of advancement and equality especially when it comes to women and their rights. However, when one looks upon the laws prevalent in a number of European Nations with respect to sexual assault/rape this prospective of the European Society stands under questionable docks. Only 8 out of the 31 nations in the European Economic Area (Sweden, The United Kingdoms, Ireland, Luxemburg, Germany, Cyprus, Iceland and Belgium), [7] and Switzerland, [8] have consent-based rape legislations in operation. In other European Nations such as Spain, France, Greece, Italy etc. to only name a few amongst the rest of the 23 countries, the meaning of rape still depends upon the use of force and not that on the presence or absence of the consent of the victim. [9] As per a 2014 report of the European Agency for Fundamental Rights[10] around 9 million women in the European Union have suffered from rape since the age of 15. In Denmark alone (one of the nations where the definition of rape in penal laws is not based on consent), around 24000 women experienced rape or attempt to rape in the year 2017 itself [11]. However, with respect to Denmark and in general with the nations where the definition of rape is not consent-based is the shockingly low number of convictions when matched against the number of cases or instances of rape or an attempt to rape (against 24000 cases the number of convictions in Denmark in 2017 stood at a meager 94).

What Spain Can Learn from Other Nations?

Spain and other nations where the definition of rape is not consent-based can learn from their few European counterparts under the laws of which, the element of consent and not that of violence or force is the necessary element for constituting the offence of rape. In the United Kingdom, a person is said to have committed the offence of rape if they intentionally penetrate the vagina, anus or mouth of another person with their penis without the consent of the latter [12]. This legislation takes a step forward to define consent with respect to rape and other non-consensual offences by providing that a person consents if he/she “agrees by choice, and has the freedom and capacity to make that choice.”[13]. The European Court on Human Rights while deciding the case of M.C. v. Bulgaria[14] has also held that lack of consent and not proof of resistance from the survivor is the determinative factor for the establishment of the offense of rape. Absence of consent is the determinative factor in establishing the offence of rape even under the Indian Penal Code. [15]

Spain and The Istanbul Convention

Spain, amongst other European Nations is also a signatory to the Istanbul Convention, [16] which requires criminalisation of rape and all other non-consensual acts of sexual nature. [17] Further, Spain has also ratified the Istanbul Convention which obliges its signatories to make laws with respect to violence on women in line with Convention itself. The convention itself stipulates sex without consent to amount to rape. [18] Thus, it is imperative that the law makers in Spain do not waste any more time towards making the required amendments to the Spanish Criminal Code so that another victim does not suffer the same fate as that of the Manresa incident at the hands of the law which completely invalidate the importance of consent with respect to a crime as heinous as sexual assault/rape.

Conclusion

The Manresa Rape Case adds to the pile of cases wherein the Accused is awarded a lesser punishment than what would be justified. After the addition of another disgraceful feather in the government’s hat, it’s high time to overhaul the patriarchal laws of Madrid, and give women their long denied due justice. Having 48 UNESCO World Cultural Heritage sights on the map, [19] it is but imperative that a nation like Spain needs to enact legislations at the earliest so as to check the recent trend of people accused of rape getting punished for lesser crimes due to the absence of the concept of consent with respect to the offence of rape in the criminal laws of the country. The protest on the streets of Madrid speaks of the need to acknowledge the forgotten concept of consent, a concept missing in the Spanish Rape Laws. Living in an age where sexual offences are being considered as one of the most heinous crimes, crimes against humanity, it is imperative that the perpetrators of such acts do not dodge their fate. The recent rise in reported incidents of sexual abuse, validate the mounting trust of the public on the judiciary. However, with slack laws on sexual offences, the confidence is fading away, and the audacity of the sinners is on an upsurge. History repeated itself as we see a reflection of the recent Wolf Pack Case [20], where the Accused were not punished for the offence of rape by a Lower Court in Spain as the victim was unable to offer resistance under the influence of alcohol, in the Manresa Case. And so, will it again if the laws are not reformed.